SECTION 10. MASS

SUBMITTERS

which contrary published authorities exist, failure to disclose and address significant contrary authorities may result in requests for additional information, which will delay action on the request. See section 9.11.

.01 Opinion Letters Issued to Mass Submitters

(1) The IRS will, upon request by a Mass Submitter, issue an Opinion Letter as to the qualification in form of the Mass Submitter’s plan under §§ 401, 403(a), and 4975(e)(7). With respect to its plan, the Mass Submitter must submit the version of Form 4461 or Form 4461–A that is applicable at the time of the request and include a completed Attachment I for a defined contribution plan or Attachment I-A for a defined benefit plan. The IRS is updating these forms and will announce when the forms will become available. Until such time as the forms are available, an application for an Opinion Letter for a Pre-approved Plan may be made by submitting the plan to the IRS along with a completed and signed Submission for Pre-approved Defined Contribution Plan Opinion Letter provided in Appendix A of this revenue procedure. The request must be sent to the address in section 19. In the case of an initial submission of a Pre-approved Plan under this revenue procedure, the Mass Submitter’s application also must be accompanied by applications for Opinion Letters filed on behalf of the requisite number of Providers that are offering the same plan on a word-for-word basis as provided in section 10.02, unless the Mass Submitter has already satisfied this requirement in connection with a previous application under this revenue procedure involving another Pre-approved Plan. Any plan submitted by a Mass Submitter must include language designating the Mass Submitter as agent for the Provider for purposes of making plan amendments. The request must be accompanied by the applicable required user fee as provided in Appendix B of this revenue procedure and a signed certification that all necessary amendments required by the IRS to retain the qualified status of the Mass Submitter’s plan have been made and communicated to all adopting Providers. Attachments I and I-A may be downloaded from the Internet at the following address: http://www.irs.gov/ Retirement-Plans/Preapproved-Plan-Submission-Procedures.

(2) After satisfying the requirement as to the number of adopting Providers, the Mass Submitter may submit additional applications on behalf of other Providers that wish to adopt a word-forword identical plan or a plan that contains minor modifications to the Mass Submitter plan, as provided in section 10.03(2). In addition, the Mass Submitter may then submit requests for Opinion Letters under this section 10.01 for its other plans, regardless of the number of identical adopters of such other plans.

.02 Reduced Procedural Requirements for Providers That Use Mass Submitter Plans - A Provider of a plan of a Mass Submitter must obtain an Opinion Letter. The Mass Submitter must submit on behalf of each Provider a completed Submission for Pre-approved Defined Contribu- tion Plan Opinion Letter which contains a declaration by the Mass Submitter under penalty of perjury that the Provider will offer a plan that is word-for-word identical to a plan of the Mass Submitter, or a plan that is a minor modification of the Mass Submitter’s plan. The Submission for Pre-approved Defined Contribution Plan Opinion Letter must be typed. If the Provider is offering a word-for-word identical plan (including a flexible plan) a copy of the plan need not be submitted. If the Mass Submitter submits a plan with minor modifications, it must comply with the requirements of section 10.03(2). The request must be accompanied by the required user fee as provided in Appendix B and a signed certification that all necessary amendments required by the IRS to retain the qualified status of the Provider’s plan have been made and communicated to all Adopting Employers. Upon receipt of the request for an Opinion Letter, the IRS will, as soon as administratively feasible, issue an Opinion Letter with respect to the Provider’s plan (provided that an Opinion Letter has been issued with respect to the Mass Submitter’s plan).

.03 Definitions for Mass Submitter Plans

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(1) Flexible Plan

(a) In general - A “flexible plan” is a plan submitted by a Mass Submitter that contains optional provisions (as defined in paragraph (b) immediately below). Providers that adopt the flexible plan may include or delete any optional provision that is designated as such in the Mass Submitter’s plan, provided the inclusion or deletion of specific optional provisions conforms to the Mass Submitter’s written representation to the IRS concerning the choices available to Providers and the coordination of optional provisions. A Mass Submitter must bracket and identify the optional provisions when submitting such plan, and also must provide the IRS a written representation describing the choices available to Providers and the coordination of optional provisions. Thus, such a representation must indicate whether a Provider’s plan may contain only one of a certain group of optional provisions, may contain only a specific combination of provisions, or may exclude the provisions entirely. Similarly, if the inclusion (or deletion) of a specific optional provision in a Provider’s plan will automatically result in the inclusion (or deletion) of any other optional provision, this must be set forth in the Mass Submitter’s representation. A flexible plan may contain only optional provisions that meet the requirements of section 10.03(1)(b), and must be drafted so that the qualification of any Provider’s plan will not be affected by the inclusion or deletion of optional provisions. For example, if a Provider’s defined contribution plan contains an optional provision that allows a portion of a participant’s account to be invested in life insurance, then under the terms of the Provider’s plan, the application of the proceeds of the life insurance must meet the requirements of §§ 401(a)(11) and 417. A flexible plan adopted by a Provider that differs from the Mass Submitter plan only because the Provider has deleted certain optional provisions from its plan in conformance with the Mass Submitter’s representation described in this paragraph will be treated as a word-for-word identical plan to the Mass Submitter plan. The IRS encourages Mass Submitters to limit the number of optional provisions described in section 10.03(1)(b)(i) and (ii) that they provide under a flexible plan to six investment provisions and six administrative provisions.

(b) Optional Provisions - A flexible plan may contain optional provisions that comply with the requirements set forth in this paragraph. The optional provisions may be arranged as separate optional articles or sections within a Pre-approved Plan or as separate optional provisions within a single article or section. A flexible plan also may contain related optional provisions in the adoption agreement. For example, if a plan document for a Mass Submitter flexible plan contains an optional provision that would allow for loans under a Provider’s plan, the adoption agreement may also include an optional provision that would enable an Adopting Employer to elect whether loans will be available under the plan it adopts. If the Provider does not wish to enable Adopting Employers to make loans available under their plans, the Provider would delete from the Provider’s plan both the plan document optional provision and the adoption agreement optional provision. A Provider may include or delete optional provisions of a Mass Submitter plan, but once the Provider has decided to include an optional provision, it must offer that provision to all Adopting Employers. Any optional provision that the IRS determines does not meet the requirements of this section must be changed to a non-optional provision or deleted from the Mass Submitter’s plan. The following is an exclusive list of the allowable optional provisions that a flexible plan may contain:

(i) Investment Provisions - A Mass Submitter may offer a variety of investment provisions in its plan for Providers to include or delete from their version of the plan. However, the plan as adopted by the Provider must provide some method for investing trust assets. Investment provisions are those provisions that describe the plan’s methods of investing the trust or custodial funds, including provisions such as the availability of loans and investments in insurance contracts or other funding media, and self-directed investments.

(ii) Administrative Provisions - A Mass Submitter may offer a variety of administrative

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provisions in its plan for Providers to include or delete from their version of the plan. However, the plan as adopted by the Provider must describe how the plan will be administered. Administrative provisions are those provisions that describe the administration of the plan, including the powers, duties, and responsibilities of a plan’s custodian, trustee, administrator, employer, and other fiduciaries. Administrative provisions include the allocation of responsibilities among fiduciaries, the resignation or replacement of fiduciaries, the claims procedures under the plan, and the record-keeping requirements. However, procedural provisions that are required for plan qualification are not administrative provisions under this section. For example, provisions that provide for the notice to participants required by § 417 and record-keeping required by regulations under §§ 401(k) and/or 401(m) are not administrative provisions for purposes of this revenue procedure, and may not be optional provisions.

(iii) Cash or Deferred Arrangement - A Mass Submitter of a defined contribution plan may include a self-contained cash or deferred arrangement (as defined in § 401(k)) for Providers to include or delete.

(2) Minor Modifications

(a) A “minor modification” is a minor change to an otherwise word-for-word identical Pre-approved Plan of the Mass Submitter that the IRS determines does not require an in-depth IRS technical review. For example, a change from five-year 100% vesting to three-year 100% vesting is a minor modification. On the other hand, a change in the method of accrual of benefits in a defined benefit plan would not be considered a minor modification. A minor modification must be submitted by the Mass Submitter on behalf of the Provider that will adopt the modified plan. Subject to sections 10.05 and 11 and the provisions of this section, submissions with respect to minor modifications will be reviewed on an expedited basis, and Opinion Letters will be issued to the Provider as soon as possible.

(b) The IRS reserves the right to determine if changes described in the previous paragraph are minor. If it is determined that the changes are extensive or require an in-depth technical review, the plan submitted under paragraph (c) immediately below will not be entitled to expedited review and will otherwise be treated as a non-mass submitter plan. In the event the plan is treated as a non-mass submitter plan, the IRS will notify the Mass Submitter in writing of its determination. Within 30 days following the date of such communication, either the Mass Submitter may revise the plan so that the modifications are minor and resubmit the revised plan, or the Provider may submit Form 4461 or 4461–A, whichever is applicable, and an additional user fee in an amount equal to the difference between a non-mass submitter plan application user fee and a minor modifier application user fee. If, after such 30 day period, neither action has been taken, the IRS may treat the application as having been withdrawn.

(c) The Mass Submitter must initially submit the first page of the applicable Form 4461–B as a placeholder with respect to each Provider that will offer a plan that is a minor modification of the Mass Submitter’s plan. The form must be typed. When the IRS sends a notification to the applicable Mass Submitter with respect to the lead plan indicating that the IRS has determined that the plan appears to be in full compliance with the applicable qualification requirements, the Mass Submitter must submit a copy of the Mass Submitter’s plan with the modifications highlighted, as well as a statement indicating the location and effect of each change. The Mass Submitter must certify under penalty of perjury that the plan of the Provider, except for the delineated changes, is word-for-word identical to the plan for which the Mass Submitter received an Opinion Letter. If a Mass Submitter fails to identify each modification, such failure will be considered a material misrepresentation, and an Adopting Employer may not rely on any Opinion Letter that may be issued with respect to the plan. If a Mass Submitter repeatedly fails to identify such modifications, the IRS may deny permission to that Mass Submitter to submit additional modifications.

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